EVENTS

The importance of the status quo in legal proceedings

Newton’s first law of motion, that an object will continue in its current state of motion unless acted upon by an external force, can be used as a metaphor about how changing the status quo is harder than maintaining it. It seems to apply in law too, where the status quo carries with it a weight that puts a heavier burden on those trying to change it than those trying to maintain it. This was manifest in the case involving Utah’s same-sex marriage.

One thing that puzzled me about the ruling of the US District judge Robert B. Shelby that Utah’s ban on same-sex marriage was unconstitutional was that he had not issued a stay of his ruling pending appeal. That is usually the norm in a case of major import like this one that is bound to be appealed. I learn from Andrew Koppelman that this was because the Utah Attorney General blew it.

It is apparently the norm for the state to file as part of their brief, or as a separate brief concurrently, a request for the judge to issue a stay in the event that they lose. In this case, they neglected to do so and so the judge, not having a motion to stay his ruling in front of him when he ruled on Friday, December 20th, naturally did not do so and his ruling went into effect immediately. This is why they state had to wait until Monday morning to file a request to stay.

But what happened was that by that time the status quo had changed. Before Friday, the status quo was that same-sex marriage was not allowed. By Monday morning, the status quo had become that same-sex marriages were allowed, and indeed had already taken place and were continuing to take place, and now the state had the burden of overturning the status quo and showing that not doing so would cause irreparable harm to the state. That turned out to be hard to do because, as the judge said in the oral hearings (you can read the transcript of the hearings here), if his verdict were overturned by a higher court, then the same-sex marriages contracted after his ruling would be nullified so there would be no irreparable harm to the state.

Comments

That turned out to be hard to do because, as the judge said in the oral hearings (you can read the transcript of the hearings here), if his verdict were overturned by a higher court, then the same-sex marriages contracted after his ruling would be nullified so there would be no irreparable harm to the state.

Although this is probably the case in Utah, it was not the case in California where then Attorney General Jerry Brown ruled that all same sex marriages contracted prior to Prop. 8 were valid

Utah, either through laziness, incompetence or a surfeit of optimism, failed to request Judge Shelby stay his decision in case the state lost. Since Shelby had no motion to stay, he didn’t. So the state tried to play catchup and failed both at the District Court level and the Circuit Court level.

if his verdict were overturned by a higher court, then the same-sex marriages contracted after his ruling would be nullified

Given that it could take several years to reach SCOTUS, and the meantime couples with be filing joint tax returns and receiving various benefits of being married, if his ruling is ultimately nullified will that mean everyone will have to retroactively refile as single, payback any benefits, etc. What about court judgements that hinged on a person’s marriage status (custody, inheritance, etc.) — will they then have to be revisited?

You are right that it will be difficult to reverse everything. There may be a compromise in that the marriages that were enacted while it was legal would be allowed to continue but new ones would not be allowed. So the couples who were married in Utah would have the same legal status as same-sex couples who got married in states where it was legal and then moved to Utah.

Retroactively re-filing is not the worst thing in the world. A friend of mine spent a chunk of time this fall doing exactly that in the other direction: amended returns showing her and her wife as married filing jointly for federal taxes.